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ADDRESS 


C  ' 

5 


CHIEF  JUSTICE  WALTER  CLARK 

OF  THE  NORTH  CAROLINA  SUPREME  COURT 


COOPER    UNION.    NEW    YORK   CITY 


27  JANUARY.  1914 


GOVERNMENT   BY  JUDGES 


SECOND  EDITION 


yf^tm/  /Ccmiili'mc'n/M  iOf' 


\ 


ADDRESS 

BY 

CHIEF  JUSTICE  WALTER  CLARK 

OF  NORTH  CAROLINA  SUPREME  COURT 

AT 

COOPER   UNION,  NEW  YORK  CITY 
27   JANUARY.   1914 


GOVERNMENT   BY  JUDGES 

My  Fellow  Citizens: — It  lias  been  said  that  a  contented  peo- 
ple have  no  annals.  The  present  unrest  among  the  people,  not 
only  in  this  country,  but  the  world  around,  strange  as  it  may 
seem  to  some,  is  one  of  the  best  signs  of  the  times.  When  peo- 
ple at  large  are  content,  they  are  either  ignorant  of  better  con- 
ditions or  hopeless  of  attaining  them.  A  "divine  discontent"  is 
the  basis  of  civilisation,  and  of  all  progress  in  bettering  the  con- 
dition of  humanity. 

Some  one  has  said  that  "civilization  is  h — 11  to  the  under- 
dog!" Those  who  create  the  wealth  of  the  world  do  not  pos- 
sess it,  for  they  pass  thru  the  world  with  the  barest  living,  and 
not  always  that;  while  those  who  do  not  create  it  have  all  of  it 
except  the  mere  subsistence  of  those  who  create  it,  and  of  the 
other  workers.  We  are  fond  of  saying  that  this  country  is  a 
"government  of  the  people,  by  the  people,  and  for  the  people" ; 
that  our  government  rests  upon  the  consent  of  the  governed ;  that 
all  power  is  derived  from  the  people  and  is  to  be  exercised  for 
their  benefit  and  in  accordance  with  their  will.  This  is  the 
end  toward  which  the  world  is  moving.  We  shall  some  day 
realise  that  ideal,  but  it  will  be  "far  on  in  summers  that  we 
shall  not  see,"  for  as  yet  we  are  merely  "on  our  way." 

All  advance  towards  better  conditions  has  been  thru  a  cease- 
less combat  between  those  who  exploit  and  those  who  are  ex- 
ploited; between  those  who  create  the  wealth  of  a  country  and 
those  who  take  as  large  a  share  of  it  as  they  can  grasp. 

In  this  country,  as  in  all  countries,  the  control  of  the  Gov- 
ernment is  in  the  hands  of  the  few.     Our  institutions  merely 


give  an  easier  opportunity  to  the  many  whenever  they  have  the 
will  and  the  intelligence  to  improve  their  conditions.  We  have 
learned  that  the  form  of  government  amounts  to  very  little. 
The  real  question  is,  Where  does  the  control  of  that  govern- 
ment reside? 

In  the  countries  of  the  Old  World,  power  was  vested  in  an 
hereditary  sovereign  in  whose  selection  the  people  had  no  voice 
and  who  needed  no  approval  of  his  conduct,  however  arbitrary. 
In  the  process  of  time,  the  wealthier  classes  were  able  to  force 
recognition,  and  they  became  the  nobility  and  hereditary  legis- 
lators. When  in  course  of  time,  after  long  struggles  and  many 
revolutions,  the  class  next  below  obtained  recognition,  they 
elected  the  lower  house,  as  in  England,  but  upon  a  suffrage 
restricted  to  the  well-to-do  and  by  a  system  which  permitted 
the  influence  and  the  money  of  the  government  of  the  king  and 
nobility  to  dictate  the  election  of  a  majority  of  the  lower  house 
or  their  purchase  by  the  bestowal  of  titles  and  money. 

To  this  system  as  buttresses  there  was  an  army  and  navy 
whose  best  posts  were  filled  by  younger  members  of  the  nobility, 
while  the  rank  and  file  were  composed  of  men  from  the  ex- 
ploited masses,  conscripted  or  forced  into  service,  and  paid  an 
insignificant  amount  ranging  from  two  to  twenty  cents  per 
month.  The  Church  was  also  a  State  institution  likewise  paid 
for  by  the  exploited  millions,  and  whose  higher  positions  were 
■  :^lled  by  the  appointment  of  the  younger  members  of  the  aris- 
tocracy. 

Such,  in  brief,  was  the  origin  and  the  development  of  gov- 
ernments in  the  Old  World.  If  there  was  discontent,  the  army 
and  navy  under  the  command  of  their  aristocratic  officers  were 
used  to  shoot  down  the  friends  and  relatives  of  the  underpaid 
rank, and  file.  And  the  thunders  of  the  Church  were  used  to 
frighten  with  threats  of  eternal  condemnation  and  everlasting 
fires  those  who  aspired  to  better  their  conditions  in  life  and 
obtain  some  little  larger  share  of  the  wealth  they  created. 
Those  who  objected  to  being  exploited  were  shot  in  this  world 
and  officially  damned  in  the  next.  Our  plutocrats,  lacking 
these  facilities,  have  resorted  to  the  infallibility  of  the  Supreme 
Court. 

In  this  country,  in  1776,  we  issued  a  Declaration  which  was 
the  sublimest  that  the  world  had  ever  heard.  It  proclaimed  the 
rights  of  mankind,  and  their  equality  and  freedom.     For  seven 


years  the  people  of  this  country  sacrificed  themselves  to  obtain 
a  government  based  upon  the  principles  of  that  great  Declara- 
tion of  Human  Rights.  And  then,  when  the  struggle  was  over, 
with  sublime  audacity,  the  reactionary  party — the  champions 
of  government  of  the  many  by  the  few — quietly,  unostenta- 
tiously, but  effectively,  took  control  of  the  Government. 

In  1787  there  was  assembled  at  Philadelphia  a  Convention 
for  the  nominal  purpose  of  creating  better  business  and  com- 
mercial relations  between  the  States.  A  stronger  Union  was 
necessary.  Taking  advantage  of  this  need,  the  reactionary  ele- 
ment shaped  the  Constitution  of  the  United  States. 

That  instrument  deserves  an  analysis.  Our  Government  is 
divided  into  three  great  departments,  the  legislative,  the  execu- 
tive, and  the  judicial.  Of  these  three  great  departments  which 
compose  our  whole  scheme  of  government,  the  control  of  only 
one-sixth,  ^.  e.,  the  election  of  the  lower  branch  of  the  legisla- 
tive department — the  House  of  Representatives — was  given  to 
the  people.  Indeed,  it  was  less  than  one-sixth,  because  the 
House  of  Representatives  not  having  the  confirmation  of  public 
officials  or  the  treaty  power  and  other  privileges  which  were 
given  to  the  Senate,  is  considerably  less  than  one-half  of  the 
legislative  department.  Besides, 'the  election  of  the  Members 
of  the  House  of  Representatives  was  not  granted  to  the  people, 
as  we  now  understand  the  word,  for  in  no  State  was  there 
"manhood  suffrage,"  but  the  right  of  voting  was  in  most,  if  not 
in  all,  restricted  b^^  a  property  qualification,  which  in  some 
States  meant  the  ownership  of  land. 

The  other  and  the  far  larger  part  of  the  legislative  depart- 
ment, the  Senate,  was  chosen  at  second  hand  by  legislators, 
themselves  chosen  originally  by  a  restricted  suffrage.  It  was 
soon  discovered  that  the  election  of  Senators  was  largely  con- 
trolled by  the  great  financial  interests.  Exceedingly  few  of 
them  were  ever  frankly  in  sympathy  with  the  masses.  They 
were  not  in  accord  with  the  "under-dog,"  to  whom  they  were 
not  indebted  for  their  seats  and  to  show  sympathy  for  whom 
would  be  a  sure  means  of  defeating  a  reelection.  This  was  soon 
understood,  and  as  far  back  as  1820,  now  more  than  90  years 
ago,  an  effort  was  made  to  amend  the  Constitution  to  require  the 
election  of  Senators  and  judges  by  the  people.  But  so  powerful 
has  been  the  influence  of  the  great  corporations  and  the  allied 
vested  Interests,  that  it  took  90  years  for  the  people  to  win  the 


right  to  choose  the  Senators  who  should  represent  them.  The 
fight  was  not  won  until  less  than  a  year  ago.  The  astonishing 
change  in  the  tone  of  the  Senate  has  already  vindicated  the  wis- 
dom of  the  people  in  persistently  demanding  this  great  change. 

But  to  return  to  the  Constitution  of  the  United  States  as 
adopted  in  1787.  There  was  the  provision  for  the  election  of 
the  President.  This  was  not  given  to  the  people,  and  it  was 
intended  that  he  should  be  elected  at  third  hand  by  electors 
chosen  by  the  legislatures  of  the  different  states,  the  legislatures 
being  chosen,  as  already  stated,  by  restricted  suffrage.  This 
system,  however,  has  not  worked  out  as  intended.  The  people 
demanded  that  the  electors  should  be  chosen  by  themselves. 
This  was  done  gradually  as  State  after  State  made  this  change. 
After  nearly  40  years  the  system  of  the  legislatures  electing 
the  presidential  electors  was  entirely  done  away  with,  except 
in  South  Carolina.  In  1876  Colorado  chose  its  presidential 
electors  by  the  legislature,  and  it  is  still  in  the  power  of  any 
state  legislature  to  change  the  election  of  its  presidential  elect- 
ors back  to  that  method — if  they  dare  to  do  it.  As  a  result, 
however,  the  greatest  Constitutional  Amendment  was  adopted 
by  popular  action,  without  writing  any  amendment  into  the 
Constitution,  for  the  people  captured  the  right  to  elect  the 
President  by  making  the  electors  mere  figureheads,  and  have 
ever  since  chosen  their  President  by  popular  vote.  Tho  each 
elector  has  the  legal  power  still  to  cast  his  vote  for  his  indi- 
vidual choice,  no  one  has  yet  dared,  even  in  the  most  heated 
contest,  as  in  the  Hayes-Tilden  election,  to  vote  for  a  candidate 
other  than  the  one  for  whom  he  was  pledged  to  vote. 

jSTow,  let  us  turn  to  the  third  department  of  the  Government, 
which  in  the  beginning  was  considered  of  so  little  influence  in 
the  Government  that  Chief  Justice  Jay  of  the  Supreme  Court  of 
the  United  States  resigned  to  take  the  position  of  Governor  of 
New  York,  and  the  appointment  to  the  Supreme  Court  was  de- 
clined by  more  than  one,  when  tendered.  The  possibilities  of  the 
Court  were  not  understood,  and  indeed  were  unkno^vn  until  its 
vast  extension  of  power  was  grasped,  without  any  grant  in 
the  Constitution  itself,  by  an  obiter  dictum  opinion  in  Marbury 
V.  Madison.  Those  who  drafted  the  Constitution  at  Philadel- 
phia had  been  careful  to  place  the  judges  beyond  any  influence 
of  public  opinion  by  making  them  appointive,  at  fourth  hand, 
by  the  President,  who  was  to  be  chosen  at  third  hand,  subject  to 


confirmation  by  a  Senate  chosen  at  second  hand,  and  they  were 
to  hold  for  life,  so  as  to  be  free  from  any  consideration  whether 
their  conduct  was  conformable  to  the  will  of  the  people,  which 
last,  with  well-framed  irony,  was  proclaimed  as  the  "foundation- 
stone"  of  the  new  republic. 

Nothing  could  be  more  absolutely  out  of  accord  with  a  repub- 
lic than  the  appointment  of  officials  for  life.  At  the  time,  how- 
ever, that  this  Constitution  was  adopted  such  was  the  tenure  of 
judges  in  all  the  states  but  one,  and  in  none  of  them  were  the 
judges  chosen  by  the  people,  even  under  the  restricted  suffrage 
then  obtaining.  But  it  was  soon  discovered  that  the  method  of 
selecting  judges  meant  practically  their  selection  by  the  property 
interests,  and  that  a  life  tenure  abstracted  them  from  all  respon- 
sibility. As  a  result.  State  after  State  amended  its  Constitution, 
until  to-day  the  judges  are  elective  in  all  the  states  but  seven; 
and  while  they  still  retain  the  life  tenure  nominally  in  four 
states,  they  practically  have  that  tenure  in  only  one.  For  in 
the  other  three  the  judges  can  be  dropped  at  any  time,  by  a 
majority  vote  of  the  legislature,  without  trial  and  without  cause 
assigned. 

The  change  from  life  tenure  to  a  term  of  years  and  to  elec- 
tion by  the  people  was  in  effect  the  adoption  of  a  modified  re- 
call, the  necessity  for  which  had  been  proven  by  experience. 
Not  that  the  judges,  either  elective  or  appointive,  either  State 
or  Federal,  have  been  corrupt.  To  the  credit  of  the  Bench,  it 
must  be  said  that  such  instances  have  been  exceedingly  rare. 
But  experience  has  demonstrated  the  absolute  unwisdom  of 
placing  irreviewable  power  in  the  hands  of  any  man  or  set  of 
men  by  life  tenure,  no  matter  how  wise  or  pure  they  may  be.  It 
had  proved  so  in  the  past  as  to  kings,  tho  there  had  been  some 
good  kings;  and  it  proved  equally  so  as  to  life  judges,  for  State 
after  State  abolished  it.  As  to  the  United  States  judges,  tho 
bill  after  bill  has  been  introduced  into  Congress  to  change  their 
life  tenure  into  tenure  for  a  term  of  years,  and  their  method  of 
appointment  into  election  by  the  people  of  the  respective  dis- 
tricts and  circuits  over  which  they  preside,  the  influence  of  the 
great  vested  Interests  has  postponed  the  adoption  of  the  pro- 
posed measure. 

The  importance,  indeed  the  overwhelming  preponderance,  of 
the  Judiciary  in  the  Government  was  unexpectedly  created  in 
1803  by  a  decision  of  the  Supreme  Court  of  the  United  States, 
2 


6 

without  a  line  in  the  Constitution  to  authorise  it,  when  that  body 
assumed  the  right  to  nullify  and  veto  any  act  of  Congress  that 
they  chose  to  hold  unconstitutional.  This  astonishing  declara- 
tion was  made  in  the  case  known  as  Marhury  v.  Madison,  by 
Chief  Justice  Marshall.  The  doctrine  was  shrewdly  set  forth 
in  an  obiter  dictum,  that  is,  in  an  opinion  which  did  not  call 
for  an  execution  of  any  mandate  of  the  Court,  for  he  knew  that 
Thomas  Jefferson,  then  President,  would  not  recognise  the 
validity  of  the  opinion  nor  put  it  into  execution.  He  therefore 
laid  down  the  doctrine  that  the  Court  could,  if  it  chose,  declare 
that  any  act  of  Congress  was  unconstitutional,  but  wound  up 
by  deciding,  notwithstanding,  against  the  plaintiff,  upon  the 
ground  that  the  Supreme  Court  was  not  authorised  to  issue  a 
mandamus  or  writ  to  effectuate  the  views  he  had  expressed,  A 
few  years  later,  in  the  matter  of  the  Yazoo  claims,  when  the 
Court,  thru  the  same  Chief  Justice,  held  an  act  unconstitutional 
and  directed  the  issuance  of  a  writ  in  accordance  with  the  opin- 
ion, Andrew  Jackson,  then  President,  pithily  said :  "John  Mar- 
shall has  made  his  decision,  has  he?  Now  let  us  see  him  exe- 
cute it."  It  was  accordingly  never  executed,  and  to  this,  day 
has  remained  a  blank  piece  of  paper. 

The  assertion  of  this  doctrine  was  promptly  seized  upon  as  a 
boon  by  the  Special  Interests  and  by  all  who  at  heart  believed 
in  the  government  of  the  many  for  the  benefit  of  the  few.     It 
has  practically  made  the  courts  the  dominant  power  in  every  i 
State  and  in  the  Union.    Whenever  any  progressive  statute  has 
not  been  in  accord  with  the  economic  views  entertained  by  the 
courts,  it  has  always  been  in  their  power,  which  has  been  very  ■ 
generally  exercised,  to  declare  that  the  statute  in  question  was 
unconstitutional  because  it  was  not  "due  process  of  law,"  or 
"deprives  of  the  equal  protection  of  the  law,"  and  there  are 
other   phrases   which   the   judges   use   at  will.      Even   Magna 
Carta,  which  was  a  treaty  between  King  John  on  the  one  hand 
and  13  barons  and  13  bishops  on  the  other,  in  an  attempt  to 
restrict  the  absolute  power  of  an  irresponsible  king,  has  some- 
times been  resorted  to  as  being  in  some  inconceivable  way  a 
heaven-born  bar  in  the  hands  of  the  courts  upon  the  power  of  ] 
the  American  people.    These  phrases  are  very  elastic  and  mean 
just  whatever  the  court  passing  upon  the  statute  thinks  most  ; 
effective  for  its  destruction.     This,  of  course,  makes  of  vital 
importance  the  inquiry,  "What  are  the  beliefs  of  the  majority 


of  the  Court  on  economic  questions,  and  wliat  happens  to  be 
their  opinion  of  a  sound  public  policy?"  A  power  so  great  and 
so  irreviewable,  and  therefore  so  irresponsible,  has  become  the 
mainstay  of  the  antiprogressive  element. 

The  elastic  and  much  extended  phrase,  "due  process  of  law," 
historically  and  as  a  legal  concept,  relates  only  to  procedure. 
It  merely  requires  that  the  party  shall  have  right  to  a  regular 
trial  according  to  ordinary  procedure.  In  the  Ives  case,  201 
N.  Y.,  271,  the  Court  set  aside  an  act  providing  for  the  com- 
pensation of  workmen  employed  in  eight  inherently  dangerous 
trades.  This  decision  required  an  amendment  to  your  Constitu- 
tion to  overrule  it.    This  is  but  one  instance  out  of  hundreds. 

It  is  because  of  this  intrusion  of  the  economic  views  of  the 
judges  that  the  more  recent  state  constitutions  resemble  rather 
a  consolidated  edition  of  the  statutes  than  a  declaration  of  the 
organic  law  and  a  frame  of  government.  The  judges  have  made 
it  absolutely  necessary  that  amendments  to  the  Constitution  may 
be  made  more  easily  and  properly  to  prevent  the  evil  that  is 
caused  by  their  opposition  to  all  progressive  measures  for  the 
betterment  of  the  public. 

Professor  Corwin  of  Princeton  University  recently  said  that 
"due  process  of  law  is  not  a  legal  concept  at  all,  but  merely  a 
roving  commission  to  judges  to  sink  whatever  legislative  craft 
may  appear  to  them,  from  the  standpoint  of  vested  Interests, 
to  be  of  a  piratical  tendency." 

Dean  Trickett  well  said:  "The  legislators  are  elected  to 
speak,  and  usually  do  speak,,  the  people's  will.  The  people  will 
never  be  masters  in  their  own  house  so  long  as  a  majority  of 
nine  gentlemen,  pretending  to  have  Marconigrams  from  the  de- 
funct men  of  1787  and  1788  concerning  their  meaning  when 
they  adopted  this  or  that  phrase  of  the  Constitution,  arrogate 
to  themselves  the  power  of  veto,  and  not  merely  refuse  to  aid  in 
the  enforcement  of  statutes,  but  even  launch  prohibition  against 
the  carrying  out  of  these  statutes  by  those  who^  unhindered  by 
them,  would  legally  execute  them." 

The  XIV  Amendment,  which  was  passed  for  the  protection 
Df  the  negro,  has  been  construed  as  useless  as  to  him,  but  it  has 
become  a  tower  of  safety  to  the  vested  Interests,  who,  seeing 
that  suffrage  was  becoming  more  and  more  unrestricted,  and 
:hat  the  President  had  been  made  elective  practically  by  the 
people,  and  that  they  could  not  rely,  as  in  Europe,  upon  an 


8 

army  officered  by  their  sons,  or  the  fulminations  of  a  state 
church,  were  thrown  back  upon  the  Senate,  chosen  largely  by 
their  influence,  and  the  appointment  of  judges  for  life,  mostly 
from  the  ranks  of  attorneys  who  had  been  their  employees. 

The  vested  Interests  for  90  years  held  back  the  election  of 
United  States  Senators  by  the  people.  Their  remaining  sheet- 
anchor  now  is  the  selection  of  judges  appointed  by  the  execu- 
tive, to  hold  for  life.  'No  one  will  accuse  these  judges  of  cor- 
ruption, notwithstanding  a  few  alleged  instances,  and  a  few 
impeachment  trials.  But  the  fact  remains  that  the  appoint- 
ments to  the  Federal  judgeships  are  very  often  made  at  the 
instance  of  influences  which  are  exerted  for  great  Interests  who 
feel  the  need  of  men  in  that  position  who  believe  in  the  sacred- 
ness  of  their  vested  rights.  These  appointees,  as  a  rule,  have 
been  men  of  ability,  but  men  who,  because  of  their  ability,  have 
been  retained  in  the  service  of  great  corporations.  When  these 
men  who  have  spent  their  professional  life  in  advocating  the  de- 
cision of  causes  from  the  standpoint  of  their  employers  are 
translated  to  the  Bench,  they  naturally  continue  to  view  such 
questions  from  the  same  standpoint.  This  is  not  corruption  on 
their  part,  for  the  more  honest  their  convictions,  the  more  tena- 
ciously they  will  assert  those  ultra  views  in  their  opinions  on 
the  Bench.  The  complaint  is  not  corruption,  but  of  usurpation 
of  control  over  the  lawmaking  power  which  under  the  Consti- 
tution should  be  in  the  people.  In  England,  when  the  people 
have  put  a  measure  thru  Parliament  over  the  power  of  the 
aristocracy,  there  is  an  end,  for  there  is  neither  Executive  nor 
Judicial  veto.  Here,  the  Interests  resort  first  to  the  executive 
and  then  to  the  judges  to  defeat  the  popular  will. 

A  well  known  book  gives  the  secret  history  of  the  Dartmouth 
College  case  and  the  methods  by  which  the  original  views  of  the 
Court  in  that  case  were  changed  in  favor  of  the  vested  Inter- 
ests. The  true  inside  history  of  the  methods  used  to  change  the 
Court  in  the  Income  Tax  case  might  shock  the  Nation,  if  gener- 
ally made  known. 

It  would  be  well  to  inquire  just  here,  what  authority  there  is 
in  the  Constitution  for  the  assertion  of  such  remarkable  power, 
by  which  five  lawyers  sitting  in  Washington  can  negative  an  act 
of  Congress  passed  by  the  House  and  Senate,  and  approved  by 
the  President,  and  overruling  the  precedents  of  the  Court  on 


9 

which  they  sit,  and  overruling,  besides,  the  views  of  four  judges 
on  the  same  Bench,  as  happened  in  the  Income  Tax  case. 

There  is  not  a  line  in  the  Constitution  which  authorises  the 
assumption  of  this  unlimited  power  by  the  Court.  Nor  is  there 
a  line  in  any  State  Constitution  which  so  authorises  it.  The 
members  of  the  legislatures  and  of  Congress,  governors  and 
presidents,  are  equally  with  the  judges  sworn  to  observe  the 
Constitution.  There  is  no  intimation  that  to  the  judges  was 
given  the  power  to  negative  the  exercise  of  their  sworn  duties  by 
these  other  officials,  and  the  presumption  was  that  all  equally 
would  obey  the  Constitution.  There  was  no  preeminence  given 
the  judges.  When  Congress,  or  a  legislature,  passes  a  statute, 
it  is  a  construction  by  the  majority  of  those  bodies  that  it 
is  constitutional.  When  the  President  or  the  Governor  vetoes 
or  approves  it,  the  presumption  is  that  he  has  acted  according 
to  his  construction  of  the  Constitution;  but  as  the  presumption 
is  that  the  greater  number  of  men  are  better  informed  than  one, 
by  the  Constitutions  of  the  States  (and  the  Federal  Constitu- 
tion) in  which  the  veto  power  is  given,  there  is  power  lodged  in 
the  legislature  or  Congress  to  overrule  a  veto^  by  a  vote  ranging 
from  a  bare  majority  to  a  two-thirds  vote.  If  the  executive,  or 
the  legislative  departments  disregard  their  oaths,  the  remedy  is 
correction  by  the  people  at  the  next  election.  If  the  judges 
make  a  mistake  in  vetoing  a  statute,  there  is  no  power  to  cor- 
rect them,  especially  if  holding  for  life.  Had  the  Constitution 
given  the  judges  the  power  to  set  aside  a  statute,  it  would  have 
given  the  legislature  the  same  power  as  in  case  of  the  executive 
to  overrule  their  veto.  Had  it  been  supposed  that  such  power 
for  the  judges  was  concealed  in  the  Constitution,  it  is  safe  to 
say  that  it  would  not  have  been  ratified  by  a  single  State. 

This  power  when  assumed  by  the  judges  in  Marhury  v.  Madi- 
son was  without  a  precedent  in  any  other  country.  It  had  never 
been  dreamed  of  before  in  any  other  country  that  the  judges 
would  assume  governmental  functions  and  negative  the  action 
of  the  men  who  were  entrusted  with  the  lawmaking  duties.  It 
had  been  attempted  only  once  in  England,  and  then  they  very 
promptly  hung  the  Chief  Justice  (Tressilian)  and  exiled  his 
Associates.  And  the  feat  was  never  attempted  again  by  any 
subsequent  judges.  Indeed,  in  England  for  a  long  time  the 
judges  were  removable  at  the  will  of  the  King,  and  when  that 
was  abandoned  they  were  made  removable  by  a  majority  vote 


10 

of  Parliament  without  trial  and  without  cause  shown.  This  is 
the  law  in  England  to  this  day.  If  the  judges  had  attempted 
any  such  decision  as  our  Court  made  in  Marhury  v.  Madison, 
in  the  Dartmouth  College  case,  or  in  the  Income  Tax  case,  and 
similar  cases,  the  lawmaking  power  would  have  at  once  vindi- 
cated its  rights  by  the  prompt  removal  of  the  judges. 

Neither  was  the  power  granted  to  the  United  States  judges  by 
the  Convention  at  Philadelphia  in  1787.  The  Reactionary  ele- 
ment which  was  in  charge  of  that  Convention  was  not  inadvert- 
ent to  the  great  advantage  of  an  irreviewable  body  having  power 
to  negative  the  will  of  the  people.  They  attempted  to  get  into 
the  Constitution  a  provision  to  that  effect.  When  that  Conven- 
tion met,  to  protect  themselves  from  any  influence  from  public 
opinion  and  in  defiance  of  the  maxim  that  government  should 
exist  only  by  the  consent  of  the  governed,  it  sat  with  closed 
doors.  The  members  were  prohibited  from  making  copies  of 
any  resolution  or  other  action  or  to  correspond  with  constitu- 
ents or  communicate  with  others  as  to  any  matters  pending 
before  the  Convention.  Any  record  of  yeas  and  nays  was  for- 
bidden; but  fortunately  one  was  kept  without  the  knowledge  of 
the  Convention.  The  Journal  was  kept  secret,  and  the  vote  to 
destroy  it  fortunately  failed  by  one  majority.  Mr.  Madison's 
copy  was  published  only  after  the  lapse  of  49  years,  when  every 
member  had  passed  beyond  human  accountability.  Only  12 
states  were  ever  represented,  and  one  of  these  withdrew  before 
the  final  result  was  reached.  Of  its  65  members,  only  55  ever 
attended,  and  so  far  from  being  unanimous,  only  39  signed  the 
Constitution,  and  some  actively  opposed  its  ratification  by  their 
own  states.  In  several  states  ratification  was  had  by  the  barest 
majority.  In  'New  York,  I  believe,  a  majority  of  one  for  ratifi- 
cation was  had  by  persuading  a  member  of  the  Legislature  to 
absent  himself.  Its  ratification  by  the  required  number  of 
States  was  secured  only  by  a  pledge  to  adopt  the  first  10  Amend- 
ments which  guaranteed  the  rights  of  man,  a  subject  which  had 
been  wholly  omitted.  In  no  State  was  there  any  ratification  by 
a  vote  of  the  people. 

Even  in  such  a  convention,  thus  composed  and  thus  secluded 
from  the  influence  of  public  opinion,  the  persistent  eifort  to 
grant  the  judges  such  power  was  repeatedly  and  overwhelm- 
ingly denied.  The  proposition  was  made,  as  we  now  know,  from 
Mr.  Madison's  journal,  that  "the  judges  should  pass  upon  the 


11 

constitutionality  of  acts  of  Congress."  This  was  defeated,  4 
June,  receiving  the  votes  of  only  two  states.  It  was  renewed 
no  less  than  three  times,  i.  e.,  on  6  June,  21  July,  and  finally 
again,  for  the  fourth  time,  on  15  August,  it  was  brought  for- 
ward, and  tho  it  had  the  powerful  support  of  James  Madison, 
afterwards  President  Madison,  and  James  Wilson,  afterwards 
a  justice  of  the  United  States  Supreme  Court,  the  proposition  at 
no  time  received  the  votes  of  more  than  three  states.  On  this 
last  occasion,  15  August,  Mr.  Mercer  thus  summed  up  the 
thought  of  the  Convention,  as  evidenced  by  its  vote:  "He  dis- 
approved of  the  doctrine  that  the  judges,  as  expositors  of  the 
Constitution,  should  have  authority  to  declare  a  law  void.  He 
thought  the  laws  ought  to  be  well  and  cautiously  made,  and  then 
to  be  incontrovertible." 

Tho  the  doctrine  that  a  court  could  set  aside  a  statute  and 
deny  the  authority  of  the  lawmaking  power  was  not  recognised 
in  England  or  any  other  country,  shortly  before  the  Convention 
met  the  courts  of  four  states,  either  because  avid  of  power  or 
because  they  thought  themselves  a  substitute  for  the  authority 
which  before  the  Revolution  had  been  exercised  by  the  Privy 
Council  in  England  of  refusing  approval  to  the  statutes  of  our 
Provinces,  had  asserted  such  authority.  In  Rhode  Island  the 
offending  judges,  who  were  elected  annually  by  the  legislature, 
were  dropped,  and  the  doctrine  in  other  states  met  with  dis- 
approval. These  decisions  were  recent,  and  Madison  and  Wil- 
son knew,  as  the  Convention  did,  that  they  were  endeavoring  to 
confer  the  same  power  on  the  Federal  Supreme  Court,  and  tho 
it  was  persistently  presented  by  them  on  four  several  occasions, 
it  was  thus  overwhelmingly  defeated. 

While  friends  of  this  doctrine  of  judicial  supremacy  over  the 
other  departments  of  the  Government  have  ingeniously  argued 
in  divers  ways  that  the  doctrine  can  be  construed  into  the  Con- 
stitution, these  votes  are  conclusive  that  the  Convention  refused 
to  put  it  there.  It  is  not  reasonable  to  suppose  that  when  the 
Convention  gave  the  President  the  veto  power,  but  expressly 
provided  that  he  could  be  overruled  by  two-thirds  vote  in  Con- 
gress, that  they  would  have  given  by  implication  a  greater  veto 
to  the  judges,  without  expressly  so  stating,  and  without  making 
their  action  reviewable  as  in  the  case  of  the  Presidential  Veto. 

However  plausible  the  arguments  in  favor  of  Judicial  Su- 
premacy, its  friends  camaot  point  to  a  line  in  the  Constitution 


12 

which  confers  it.  The  only  words  that  can  even  be  construed  as 
giving  them  any  power  is  the  provision  that  "the  Constitution 
of  the  United  States  and  the  laws  made  in  pursuance  thereof 
shall  be  supreme."  That  does  not  authorise  the  Court  to  hold 
any  act  of  Congress  unconstitutional,  but  it  means  that  when  a 
State  statute  or  Constitution  conflicts  with  the  Federal  Consti- 
tution and  statutes  enacted  by  Congress  under  its  authority,  the 
latter  shall  govern,  just  as  a  later  act  controls  an  older  one. 

Even  in  Marhury  v.  Madison  Judge  Marshall  did  not  claim 
that  any  express  provision  of  the  Constitution  conferred  this 
power,  but  derived  it  by  implication.  Indeed,  freed  from  the 
prepossessions  derived  from  our  long  acquiescence  in  the  doc- 
trine, nothing  could  be  more  preposterous  than  the  proposition 
that  five  lawyers  can  in"  their  discretion  set  aside  the  will  of  the 
people  as  expressed  in  an  act  by  the  Senate  and  House  and 
approved  by  the  President,  and  that  when  this  is  done  the  hun- 
dred millions  of  the  American  people  are  powerless  in  any  way 
to  review  such  decision. 

If  I  were  speaking  to  a  body  of  lawyers,  I  could  name  case 
after  case  in  which  this  has  happened,  and  point  out  the  bar 
upon  progress  and  upon  the  amelioration  of  the  conditions  of  the 
masses  which  has  resulted  therefrom.  If  I  were  to  quote  to  you 
the  comments  made  by  Thomas  Jefferson  upon  some  of  these 
decisions,  the  remarks  of  Andrew  Jackson,  of  Abraham  Lincoln, 
and  of  others  upon  the  exercise  of  this  usurped  power,  it  would 
make  your  ears  bum. 

Governor  Baldwin,  formerly  Chief  Justice  of  Connecticut, 
and  a  staunch  defender  of  high  prerogative  in  the  courts,  re- 
cently admitted  that  "This  right  of  a  court  to  set  itself  up 
against  the  legislature  ...  is  something  which  no  other 
country  in  the  world  would  tolerate." 

Mr.  Justice  Harlan  has  well  said :  "When  the  American  peo- 
ple come  to  the  conclusion  that  the  judiciary  of  this  land  is 
usurping  to  itself  the  functions  of  the  legislative  department  of 
the  government,  and  by  judicial  construction  only  is  declaring 
what  should  be  the  public  policy  of  the  United  States,  we  will 
find  trouhle.  Ninety  millions  of  people — all  sorts  of  people — 
are  not  going  to  submit  to  the  usurpation  by  the  judiciary  of 
the  fimctiqns  of  other  departments  of  the  government,  and  the 
power  on  its  part  to  declare  what  is  the  public  policy  of  the 
United  States." 


13 

I  need  not  now  refer  to  tlie  case  of  Chisholm  v.  Georgia,  in 
which  the  Court  haled  a  sovereign  state,  like  a  private  indi- 
vidual, to  the  Bar,  and  an  indignant  people  promptly  prevented 
the  recurrence  of  such  a  spectacle  hy  enacting  the  11th  Amend- 
ment, as  to  which  the  Court  as  late  as  1890,  in  Hans  v.  Louisi- 
ana, 134  U.  S.,  11,  said :  "This  amendment,  expressing  the  will 
of  the  ultimate  sovereignty  of  the  whole  country,  superior  to  all 
legislatures  and  all  courts,  actually  reversed  the  decision  of  the 
Supreme  Court."  This  has  happened  since  in  the  reversal  of 
the  Income  Tax  decision  by  the  XVI  Amendment.  I  will  not 
refer  to  the  Dred  Scott  decision,  which  was  so  roundly  de- 
nounced, but  which  has  since  been  cured  by  the  13th,  14th,  and 
15th  Amendments.    I  will  cite  only  two  cases. 

The  people  of  New  York,  thru  their  legislature,  felt  aggrieved 
that  the  bakers  in  your  State  were  subjected  by  the  greed  of 
their  employers  to  enormous  heat  for  an  excessive  number  of 
hours,  to  the  shortening  of  their  lives,  and  passed  a  statute 
limiting  such  labor  to  10  hours  per  day.  The  act  was  promptly 
attacked  by  that  Interest,  supported  by  the  influence  of  other 
vested  Interests  which  feared  similar  legislation.  But  your 
State  Court  of  Appeals,  elected  by  your  own  people,  in  Loch- 
ner's  case,  afiirmed  the  power  of  your  State  to  make  such  regu- 
lations. Those  great  Interests  at  once  took  the  case  by  appeal 
to  the  U.  S.  Supreme  Court  at  Washington.  It  was  purely  a 
matter  of  police  regulation,  and  the  Federal  Court  had  no  juris- 
diction over  the  matter.  But  they  usurped  it  by  the  flexible 
terms  of  the  XIY  Amendment,  which  means  anything  and 
everything  that  the  judges  see  fit,  and  which  can  be  used  to  de- 
stroy any  legislation  that  they  do  not  approve,  and  then  five 
judges,  the  majority  of  the  Court,  tho  the  four  ablest  judges  dis- 
sented, proceeded  to  tell  the  bakers  that  they  must  work  as  long 
as  their  employers  should  require,  and  in  ovens  as  hot  as  they 
chose  to  heat  them.  With  sardonic  irony  they  added  that  they 
did  this  because  the  bakers  had  a  "right  to  contract."  This  was 
adding  insult  to  injury,  for  every  one  knew  that  the  decision 
was  not  in  the  interest  of  the  bakers,  whom  the  legislature  was 
trying  to  protect,  but  in  the  interest  of  the  employers,  who  did 
not  wish  to  be  controlled  by  the  public  in  their  greed. 

It  would  have  been  a  revelation  to  the  men  who  passed  the 
XIV  Amendment  to  protect  the  negro  to  find  it  construed  as 


14 

holding  white  men  in  slavery  by  prohibiting  legislatures  from 
limiting  the  hours  of  labor  or  forbidding  insanitary  and  dan- 
gerous conditions. 

In  that  case,  Lochn^r  v.  New  York,  198  U.  S.,  104,  Mr.  Jus- 
tice Holmes,  dissenting,  thus  finely  defines  the  police  power 
which  is  reserved  to  the  States:  "The  police  power  extends  to 
all  the  great  public  needs.  It  may  be  put  forth  in  aid  of  what 
is  sanctioned  by  usage,  or  held  by  the  prevailing  morality  or  the 
strong  and  preponderant  opinion  to  be  greatly  and  immediately 
necessary  to  the  public  welfare."  This  power  belongs  to  the 
states,  and  it  was  judicial  usurpation  when  the  U.  S.  Supreme 
Court  overruled  your  State  statute. 

Then  there  was  the  Income  Tax  case.  This  tax  had  been  held 
legal  by  the  Court  for  100  years.  Tinder  it,  during  the  war, 
hundreds  of  millions  of  dollars  had  been  collected  to  aid  in 
saving  the  Union.  After  long  insistence  by  the  people,  that 
great  wealth  was  escaping  its  due  share  of  taxation,  while  labor 
and  men  of  modest  means  bore  nearly  the  entire  burden  of  sup- 
porting the  Government,  a  new  income  tax  was  enacted,  in 
spite  of  the  influence  of  a  powerful  lobby  and  of  a  large  part  of 
the  press,  which  ridiculed,  after  being  duly  inspired,  an  income 
tax.  In  England  one-third  of  the  support  of  the  Government 
was  derived  in  this  way  from  the  superfluities  of  the  wealthy  by 
the  levy  of  a  graduated  income  tax  and  a  graduated  inheritance 
tax,  increasing  the  per  cent  with  the  size  of  the  income.  The 
same  system  was  in  force  in  all  other  countries,  as  it  had  been  in 
ours.  The  bill  passed  the  lower  house  of  Congress  unanimously, 
and  I  believe  there  were  only  one  or  two  votes  against  it  in  the 
Senate.  The  President,  who  was  a  good  lawyer,  approved  it. 
The  aggregated  wealth  of  the  country  was  opposed.  The  matter 
was  brought  before  the  Supreme  Court  of  the  United  States. 
That  Court  at  first  affirmed  the  validity  of  the  act  in  accord- 
ance with  ,all  the  precedents.  Suddenly,  one  judge  changed  his 
views.  Information  was  imparted  upon  which  a  rehearing  wa& 
asked  and  then  by  a  vote  of  five  to  four  the  act  was  held  uncon- 
stitutional and  set  aside,  to  the  amazement  of  the  whole  country 
and  of  all  foreign  nations.  By  what  means  this  changeable 
judge  received  wireless  information  as  to  the  views  of  the  39 
dead  men  who  signed  the  Constitution  of  1787  has  never  been 
known.  Certainly  he  had  no  respect  for  the  opinions  of  the 
preceding  judges  on  that  Bench  who  had  held  otherwise,  nor  of 


16 

his  four  dissenting  brethren,  nor  for  his  own  opinion  as  ex- 
pressed on  the  previous  hearing.  The  result  was  that  the  vote 
of  that  one  man  put  the  Congress  and  the  President  into  the 
absurd,  not  to  say  wicked,  attitude  of  having  passed  a  law  in 
violation  of  their  oaths  to  support  the  Constitution.  He  also 
showed  a  most  profound  contempt  for  the  80,000,000  of  people 
who  then  constituted  the  United  States,  but  a  great  regard  for 
the  interests  and  views  of  the  2  or  3  hundred  thousand  owners 
of  great  wealth.  The  result  was  that  by  his  vote  he  transferred 
over  100,000,000  dollars  of  annual  taxation  from  the  very  rich, 
who  were  the  most  able  to  pay  it,  and  placed  this  burden  upon 
the  masses,  who  already  paid  more  than  their  share  of  the  bur- 
dens of  government.  His  change  of  mind  has  thus  up  to  date 
caused  the  masses  to  pay  probably  three  thousand  millions  dol- 
lars, which  under  the  will  of  the  people  as  expressed  by  the  vote 
of  Congress  and  the  approval  of  the  President  should  have  been 
placed  upon  those  most  able  to  pay  it. 

The  power,  thus  construed  to  be  in  a  court,  or  indeed  in  the 
hands  of  one  man,  to  accomplish  such  an  act  as  this  without  any 
review  or  possibility  of  review  and  without  any  words  in  the 
Constitution  conferring  it,  is  so  exorbitant  and  unprecedented 
that  it  needs  no  argument  to  demonstrate  that  it  ought  not  to 
be  tolerated,  and  can  not  safely  be  permitted  to  continue.  Not 
the  Czar  of  Russia,  nor  any  other  potentate,  would  have  dared 
to  perpetrate  such  an  act. 

It  may  be  interesting  to  note  the  origin  of  the  doctrine  of 
judicial  supremacy  over  the  lawmaking  power  as  it  originated 
in  Marhury  v.  Madison,  in  1903,  sixteen  years  after  the  forma- 
tion of  the  Constitution.  The  South  was  aware  that  the  greater 
increase  in  population  at  the  North  would  give  that  section  con- 
trol over  the  House.  For  the  protection  of  its  slave  property  by 
the  Senate  it  kept  up  the  process  of  always  simultaneously  ad- 
mitting one  slave  state  and  one  free  state  till  this  could  be  no 
longer  continued.  The  South  also  secured  the  election  of  _a 
Southern  President  or  of  a  "northern  man  with  southern  princi- 
ples," up  to  the  election  of  Lincoln.  Its  last  defense  was  the 
power  which  Marshall  had  assumed  for  the  Court,  to  set  aside 
Acts  of  Congress.  The  longer  use  of  such  power  was  jeopard- 
ized in  1861  by  the  election  of  Lincoln,  who  had  denounced  the 
Dred  Scott  decision,  and  by  the  old  age  of  Taney,  who  died,  in- 
deed, in  1864.    Thus  for  63  years  from  1801  to  1864  two  South- 


16 

ern  Chief  Justices,  Marshall  and  Taney,  together  with  Asso- 
ciates of  their  way  of  thinking,  held  to  the  theory  that  legis- 
lation by  Congress  hostile  to  property  rights  and  slavery  could 
be  vetoed  by  the  Court. 

It  is  thus  singular  that  this  doctrine  which  was  largely  a  pre- 
caution for  the  protection  of  property  in  slaves,  and  the  XIV 
Amendment  which  was  passed  for  the  opposite  purpose  of  pro- 
tecting the  negro,  have  both  become  the  refuge  and  safeguard  of 
the  Interests.    Neither  now  subserve  their  original  purpose. 

This  doctrine  is  based  upon  the  idea  that  tho  a  majority  of 
the  Senators  who  are  sworn  to  serve  the  Constitution  may  either 
viciously  or  ignorantly  violate  the  Constitution  in  the  passage 
of  an  act,  and  tho  a  majority  of  the  House  may  do  the  same, 
and  tho  the  President  may  also  either  viciously  or  negligently 
violate  his  oath  of  office  by  failing  to  veto  an  unconstitutional 
act,  and  a  minority  of  the  Court  itself  may  do  the  same,  the  five 
men  who  constitute  the  majority  are  infallible  and  will  never 
do  so,  not  even  when  they  reverse  their  predecessors,  or,  as  in 
the  Income  Tax  case,  their  own  Court. 

Marshall  was  a  great  Judge  and  rendered  many  valuable  de- 
cisions. But  as  a  matter  of  history  we  know  that  he  had  strong 
bias  and,  like  other  men,  some  faults.  He  was  Secretary  of 
State  in  January,  1801,  when  appointed  Chief  Justice  and  took 
his  seat  on  the  bench.  Yet  he  held  both  offices  up  to  the  night 
of  3  March,  1801,  when  his  office  as  Secretary  of  State  expired. 
It  was  he  who,  at  midnight,  signed  the  commission  to  Marbury, 
which  he  left  on  the  table  because  unable  to  deliver  it  before  the 
clock  struck  12,  for  Levi  Lincoln,  the  new  Attorney-General, 
stood  by  him  (as  Parton  says)  with  Mr.  Jefferson's  watch  in 
hand  and  forbade  him  to  proceed.  It  was  this  commission 
which  he  sought  to  validate  as  Chief  Justice  when  a  mandamus 
was  asked  to  compel  Madison,  the  new  Secretary  of  State,  to 
deliver  it.  He  did  not  issue  the  mandamus.  If  he  had,  there 
might  have  been  impeachment  proceedings  which  would  have 
nipped  this  doctrine  in  the  bud,  as  was  done  in  England  by  the 
execution  of  Chief  Justice  Tressilian  and  the  exile  of  his  Asso- 
ciates. 

I  would  not  have  any  one  in  this  audience  misunderstand  me. 
I  am  not  arguing  that  the  Supreme  Court  of  .the  United  States, 
or  any  other  judges,  were  not  able  and  incorruptible  because 
they  differed  with  me  in  this  matter.     IN'or  does  the  fact  that 


17 

Thomas  Jefferson,  Andrew  Jackson,  Abraham  Lincoln,  William 
J.  Bryan,  Theodore  Roosevelt,  and  thousands  of  others  have 
denied  the  existence  of  this  power  in  the  judiciary  put  the 
judges  in  the  wrong.  But  the  fact  that  judges  are  able  and 
conscientious  does  not  confer  such  power  when  it  can  not  be 
found  in  the  Constitution. 

Men  of  ability  are  not  free  from  errors,  nor  from  being  influ- 
enced by  love  of  power.  However  conscientious  they  may  be, 
placing  them  on  the  Bench  does  not  change  their  nature  nor  the 
views  which  while  at  the  Bar  they  have  entertained  of  the 
sacredness  and  superiority  of  vested  rights^  over  human  rights. 

It  is  true  that  the  audience  before  me,  however  respectable,  is 
not  the  people  of  the  United  States.  At  Syracuse  there  was  a 
large  prison  in  which  every  utterance,  however  low,  could  be 
heard  by  the  custodian  of  the  King.  It  was  known  as  the  Ear 
of  Dionysius.  l^ew  York  is  the  great  and  throbbing  center  of 
this  country — its  "Ear  of  Dionysius."  What  is  said  here,  and 
on  an  occasion  like  this,  if  it  deserves  any  consideration,  will  be 
heard  and  considered  all  over  this  country.  To  you,  therefore, 
I  have  submitted  these  views  for  your  judgment,  as  the  repre- 
sentatives of  the  people  who  are  and  ought  to  be  the  supreme 
power  in  the  Republic. 

Even  Mr.  Taft,  who  was  long  a  judge  and  who  is  on  record 
in  favor  of  judicial  high  prerogative,  has  said:  "If  the  law  is 
but  the  essence  of  common  sense,  the  protest  of  many  average 
men  may  evidence  the  defect  in  a  legal  conclusion,  tho  based  on 
the  nicest  legal  reasoning  and  profoundest  learning." 

Mr.  Herbert  Croly  says :  "Every  popular  government  should, 
in  the  end,  and  after  a  necessarily  prolonged  deliberation,  pos- 
sess the  power  of  taking  any  action  which  in  the  opinion  of  the 
decisive  majority  of  the  people  is  demanded  by  the  public  wel- 
fare." 

Many  judges  have  concurred  in  and  written  opinions  holding 
statutes  unconstitutional,  because,  tho  this  power  was  never  con- 
ferred, it  has  been  supported  by  long  acquiescence ;  and  legisla- 
tures have  passed  many  statutes,  which  otherwise  would  not 
have  been  enacted,  by  salving  their  consciences  with  the  state- 
ment, "If  the  act  is  unconstitutional,  the  courts  will  set  it  aside." 
I  am  not  attacking  the  judges  for  doing  what  most,  if  not  all, 
of  them  have  done.  But  I  support  the  proposition  that  such 
authority  has  never  been  conferred  by  the  Federal  or  any  State 


18 

Constitution ;  that  its  exercise  is  dangerous,  and  especially  so  as 
to  the  judges  themselves,  and  that  it  rests  solely  upon  long 
acquiescence  and  not  on  any  authority  in  the  Constitution.  We 
have  seen  lately  a  formidable  movement  for  the  recall  of  the 
judges  and  a  recall  of  judicial  decisions,  and  a  growing  antago- 
nism on  the  part  of  the  masses,  who  are  coming  to  view  the 
courts  with  distrust  and  as  being  hostile  to  all  progressive  move- 
ments for  the  betterment  of  their  condition. 

We  can  not  claim  that  we  are  necessarily  governed  by  the 
people  because  of  our  form  of  government,  nor  that  our  officials 
are  really  chosen  by  the  people  or  are  responsive  to  their  will. 
After  the  Kevolution,  as  I  have  said,  the  suffrage  was  very 
much  restricted.  Manhood  suffrage  was  practically  unknown. 
Without  going  into  the  details  in  the  different  states,  I  may  cite 
the  Constitution  in  North  Carolina.  In  that  state,  down  to 
1855,  no  man  could  vote  for  a  State  Senator  unless  he  owned 
50  acres  of  land.  Men  who  owned  less,  or  no  land,  were  not 
deemed  possessed  of  sufficient  intelligence  or  patriotism  to  exer- 
cise that  right.  Down  to  1836,  our  Governor  and  all  State  offi- 
cials were  chosen  by  the  legislature.  And  the  judges  were 
chosen  in  the  same  mode,  and  for  life,  down  to  1868.  For  60 
years  our  sheriffs,  clerks  of  the  court,  coroners,  and  other  offi- 
cials were  appointive  or  elected  by  the  magistrates,  or  legisla- 
ture. Changes  in  this  respect  to  popular  vote  took  place  in 
other  States,  some  earlier  and  some  later  than  with  us.  While 
the  change  has  broadened  the  influence  of  public  opinion,  we 
have  not  yet  reached  the  point  where  the  control  of  any  State 
government  or  of  the  Federal  Government  is  really  in  the  peo- 
ple. 

In  the  last  analysis,  our  Government  is  very  largely  a  plu- 
tocracy. Our  nominations  are  made  largely  by  party  machines, 
which  more  or  less  in  different  localities  are  supplied  with  the 
bulk  of  their  funds  by  great  Interests,  which  are  thus  enabled  to 
dictate  in  a  large  degree  nominations  by  each  of  the  political 
parties,  leaving  the  people  to  take  their  choice  between  candi- 
dates of  like  sentiments  as  regards  the  Interests.  This  is  being 
more  generally  understood,  and  hence  the  widespread  agitation 
in  favor  of  the  Initiative  and  the  Referendum,  and  of  legalised 
Primaries,  and  of  other  measures  intended  to  place  the  real 
power  in  the  hands  of  the  people.  Only  experience  can  decide 
how  far  the  politicians  can  "beat"  these  measures,  and  how  far 


19 

they  can  be  made  effective  by  remedying  the  defects  which  shall 
be  found  in  them  after  trial.  In  many  States  the  machines 
have,  so  far,  prevented  the  people  from  even  testing  the  efficacy 
of  these  measures.  In  others,  the  measures  are  on  the  statute- 
book,  but  time  alone  can  demonstrate,  as  already  said,  how  far 
they  can  really  place  the  government  of  this  country  in  the 
hands  of  the  people. 

In  reference  to  "Government  hy  Judges,"  who  hold  the  ulti- 
mate power  in  this  country,  since  there  is  no  power  to  review 
or  annul  their  action  when  they  set  aside  legislation,  I  will  call 
attention  to  the  measures  which  have  been  proposed  for  curing 
this  evil: 

1.  One  of  the  remedies  proposed,  as  to  the  United  States 
judges,  is  to  change  the  undemocratic  life  tenure  into  tenure  for 
a  term  of  years  and  to  make  them  elective  by  the  people,  that 
is,  that  the  district  judges  shall  be  elected  by  the  people  of  their 
respective  districts,  and  the  circuit  judges  by  the  people  of  their 
circuits,  as  in  most  of  the  States,  and  that  the  country  shall  be 
divided  into  9  divisions,  for  each  of  which  a  judge  of  the  United 
States  Supreme  Court  shall  be  chosen  by  the  people  thereof,  and 
that  the  judges  shall,  from  their  number,  elect  the  Chief  Jus- 
tice. Such  an  amendment  has  been  repeatedly  offered  in  Con- 
gress, but  the  powerful  influences  in  favor  of  the  present  system 
have  so  far  prevented  its  adoption,  as  for  90  years  they  pre- 
vented the  passage  of  the  amendment  to  make  the  Senators 
elective.  As  this  change  has  been  made  in  nearly  every  one  of 
the  States,  therp  can  be  no  question  that  it  meets  popular  ap- 
proval and  that  it  should  be  adopted.  It  is,  so  to  speak,  a  modi- 
fied recall,  in  that  it  submits  a  judge's  conduct  to  popular  ap- 
proval at  stated  intervals.  It  will  not,  however,  cure  the  entire 
trouble.  The  judges  of  most  of  the  States  have  been  made 
elective  and  for  a  term  of  years.  This  has  proved  beneficial 
(for  the  continuance  of  the  former  system  had  become  unbear- 
able), but  will  not  cure  the  evil  entirely  as  long  as  the  judges 
retain  their  assumed  power  of  an  irreviewable  veto  upon  legisla- 
tion. 

2.  Another  remedy  proposed,  and  which  has  been  supported 
by  Mr,  Bryan  and  other  trusted  leaders,  has  been  the  "recall  of 
the  judges."  This  has  been  adopted  in  California,  where  for  40 
years  the  Railroads  and  other  Interests  practically  dictated  the 
nomination  and  election  of  the  majority  of  the  judges,  and  die- 


20 

tated  many  decisions.  So  intolerable  was  the  condition  in  that 
State  that  when  an  amendment  to  this  effect  was  submitted  to 
the  people  it  was  adopted  by  more  than  100,000  majority.  The 
same  provision  has  been  adopted  into  the  Constitutions  of  Ore- 
gon, Arizona,  Nevada,  and  Colorado,  and  has  been  submitted  to 
the  people  for  ratification  in  Kansas  and  Minnesota.  In  Ar- 
kansas it  was  adopted  by  the  people,  but  the  Court  set  it  aside 
on  a  technicality.  When  Mr.  Taft  refused  to  approve  the  bill 
admitting  Arizona  as  a  State  because  it  contained  this  pro- 
vision, the  people  of  that  State  wisely  submitted  to  his  arbitrary 
conduct;  but  immediately  upon  becoming  a  state  submitted  and 
passed  an  amendment  reinserting  that  provision. 

The  Recall  of  judges  is  by  no  means  a  new  feature,  except  in 
the  fact  that  it  is  to  be  made  by  the  people.  In  England  they 
have  had  this  recall  ever  since  1688,  for  tho  the  judges  are  nomi- 
nally appointed  for  life,  they  hold  subject  to  a  provision  that 
they  can  be  removed  at  will  and  without  cause  by  a  majority 
vote  in  Parliament. 

We  will  come  a  little  nearer  home.  In  Massachusetts  they 
have  always  had  exactly  the  same  provision  in  their  Constitu- 
tion. When  in  1820  there  was  a  Convention  to  revise  their 
Constitution,  Daniel  Webster  and  others  who  represented,  as  he 
did,  vested  Interests,  earnestly  pleaded  to  strike  out  this  pro- 
vision, arguing  that  it  would  make  the  judges  subservient  to  any 
passing  gust  of  the  popular  will.  But  Massachusetts  had  a  bet- 
ter opinion  of  her  people  and  of  her  judges.  The  Convention 
refused  to  strike  out  the  provision,  which  is  still  ^n  their  Consti- 
tution. In  England  and  in  Massachusetts  and  other  States 
which  have  such  provision,  it  has  not  been  often,  if  ever,  used ; 
but,  in  the  language  of  Mr.  Wilson,  it  has  been,  it  seems,  a  good 
"gun  behind  the  door." 

The  recall  of  the  judges  is  unnecessary  where  they  hold  for 
a  term  of  years,  and  not  for  life,  provided  they  are  really  nomi- 
nated and  elected  by  the  people.  The  recall  as  applied  to  the 
judges  is  objectionable,  in  my  judgment,  for  many  reasons,  and 
among  them  this,  especially,  that  it  can  be  applied  to  cases  of 
ordinary  litigation  where  the  judge  is  exercising  only  his  legiti- 
mate judicial  function.  If  as  to  such  matters  he  proves  cor- 
rupt, he  can  be  impeached ;  and  if  he  proves,  feeble,  he  can  be 
dropped  at  the  end  of  his  term.  The  other  proposed  remedies, 
which  are  set  out  below,  have  the  great  advantage  that  they 
apply  to  prohibit,  or  to  review,  the  Courts  only  when  they  at- 


21 

tempt  to  exercise  legislative  functions  by  setting  aside  acts  of 
the  legislature  or  Congress  without  any  constitutional  authority 
in  themselves  to  do  so. 

3.  There  is  the  remedy  which  has  been  ably  advocated  by 
Mr,  Eoosevelt,  which  is  commonly  called  by  its  opponents  the 
"recall  of  judicial  decisions."  In  substance,  however,  it  simply 
applies  to  the  decisions  of  the  courts  on  constitutionality  of 
statutes  the  same  remedy  that  the  Constitution  now  gives  as  to 
the  veto  of  the  President,  to  wit,  that  the  statute  which  has 
received  a  judicial  veto  shall  be  submitted  to  Congress,  or  the 
legislature,  as  may  be,  and  if  the  court's  veto  is  overruled  by 
the  same  vote  that  is  required  to  overrule  an  executive  veto,  the 
statute  shall  be  held  in  force.  There  can  logically  be  no  objec- 
tion to  applying  to  the  judicial  veto  that  has  been  assumed  with- 
out express  authority  the  method  that  is  given  to  review  the 
expressly  conferred  executive  veto. 

4.  Another  remedy,  still,  is  a  suggested  Amendment  that  the 
courts  shall  not  be  permitted  to  hold  any  statute  unconstitu- 
tional. Seeing  that  in  every  legislature  and  every  Congress  the 
members  are  sworn  to  obey  the  Constitution  equally  with  the 
judges,  and  that  in  those  bodies  there  is  always  a  large  number 
of  lawyers,  and  other'  men  of  equal  ability  to  the  judges,  there 
is  no  reason  that  we  should  not  conform  our  procedure  in  this 
matter  to  that  of  England  and  all  other  countries  which  have 
always  denied  to  the  judges  any  control  over  legislation,  and 
which  have  always  refused  the  courts  the  overwhelming  power 
of  an  irreviewable  veto  upon  legislation  which  our  judges  have 
assumed.  In  Ohio  their  recent  Constitution  has  modified  this 
suggestion  by  providing  that  the  courts  shall  hold  no  statute  un- 
constitutional if  more  than  one  judge  dissents. 

This  would  seem  logical,  even  if  the  judges  rightfully  pos- 
sessed the  veto  power,  because  the  United  States  Supreme  Court 
has  always  held  that  no  statute  should  be  declared  unconstitu- 
tional unless  it  was  so  "beyond  all  reasonable  doubt."  Ogden  v. 
Saunders,  12  Wheat.,  269.  In  practise,  however,  we  may  ob- 
serve that  the  Court  held  the  income  tax  unconstitutional  when 
all  previous  courts,  and  indeed  the  same  court  in  that  very  case, 
had  held  that  statute  constitutional,  and  the  opinion  in  favor  of 
its  unconstitutionality  was  by  a  vote  of  5  to  4.  Upon  this  show- 
ing, certainly,  its  unconstitutionality  was  not  "clear  beyond  a 


24 

of  annulling  their  judgments  and  of  commanding  them  what 
judgments  to  render;  the  power  of  denying  to  Congress  the 
power  to  raise  revenue  by  a  method  employed  by  all  govern- 
ments; making  the  fundamental  sovereign  powers  of  govern- 
ment, such  as  the  power  of  taxation,  the  subject  of  mere  barter 
between  corrupt  legislatures  and  private  adventurers;  holding 
that  a  venal  legislature  temporarily  invested  with  power  may 
corruptly  bargain  away  those  essential  attributes  of  sovereignty, 
and  for  all  time ;  that  corporate  franchises  bought  from  corrupt 
legislatures  are  sanctified  and  placed  forever  beyond  recall  by 
the  people;  that  great  trusts  and  combinations  may  place  their 
yoke  upon  the  necks  of  people  of  the  United  States,  who  must 
groan  forever  under  their  weight,  without  remedy  and  without 
hope;  that  trial  by  jury  and  the  ordinary  criminal  justice  of 
the  States  which  ought  to  be  kept  near  the  people,  are  to  be  set 
aside  and  Federal  Court  injunctions  substituted  therefor;  that 
those  injunctions  extend  to  preventing  laboring  men  from  quit- 
ting their  employment,  although  they  are  liable  to  be  discharged 
by  their  employers  at  any  hour,  thus  creating  and  perpetuating 
a  state  of  slavery.  There  is  danger  that  the  people  will  see 
these  things  all  at  once;  see  their  enrobed  judges  doing  their 
thinking  on  the  side  of  the  rich  and  powerful;  see  them  look 
with  solemn  cynicism  upon  the  sufferings  of  the  masses,  nor 
heed  the  earthquake  when  it  begins  to  rock  beneath  their  feet; 
see  them  present  a  spectacle  not  unlike  that  of  Nero  fiddling 
while  Rome  burns.  There  is  danger  that  the  people  will  see  all 
this  at  one  sudden  glance,  and  that  the  furies  will  then  break 
loose,  and  that  all  hell  will  ride  on  their  wings." 

These  were  the  words  of  a  very  wise  and  just  judge.  There 
are  those  who  will  heed  them,  and  there  are  those  who  will 
mock  at  them.  To  my  brother  judges  who  may  hear  them  to- 
night, or  who  may  read  them,  I  would  cite  the  instance  of  the 
ten  virgins  of  whom  Supreme  Wisdom  said :  "And  five  of  them 
were  wise,  and  five  of  them  were — ^not." 


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